S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3655

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 26, 2011
                               ___________

Introduced  by  M.  of  A.  AUBRY, LENTOL, SPANO, REILLY, RAMOS, TITONE,
  CUSICK, DESTITO, GABRYSZAK -- Multi-Sponsored by -- M. of  A.  LUPARDO
  -- read once and referred to the Committee on Correction

AN ACT to amend the correction law, the penal law, the executive law and
  the  criminal  procedure  law,  in  relation to establishing residency
  restrictions for sex offenders

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  (f)  of  subdivision 1 of section 168-b of the
correction law, as relettered by chapter 10 of  the  laws  of  2003,  is
relettered  paragraph  (g)  and  a new paragraph (f) is added to read as
follows:
  (F) IF THE SEX OFFENDER HAS BEEN GIVEN A LEVEL 2 OR 3 DESIGNATION  AND
STANDS  CONVICTED  OF  A  FELONY WHICH REQUIRES REGISTRATION PURSUANT TO
THIS  ARTICLE,  WHETHER  SUCH  OFFENDER  IS  SUBJECT  TO   A   RESIDENCY
RESTRICTION  PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTI-
CLE.
  S 2. Section 168-b of the correction law is amended by  adding  a  new
subdivision 13 to read as follows:
  13.  THE  DIVISION, UPON INITIAL REGISTRATION AND THEREAFTER IN ANNUAL
CORRESPONDENCE AS REQUIRED BY SUBDIVISION FOUR OF  THIS  SECTION,  SHALL
ADVISE  EACH  SEX  OFFENDER  WHO  IS  SUBJECT TO A RESIDENCY RESTRICTION
PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE,  CONCERN-
ING  THE  TERM'S  SPECIFIC DURATION AND THE ACCURATE TERMINATION DATE OF
SUCH RESTRICTION.
  S 3. Subdivisions 2 and 3 of section  168-d  of  the  correction  law,
subdivision 2 as amended by chapter 684 of the laws of 2005 and subdivi-
sion 3 as amended by chapter 11 of the laws of 2002, are amended to read
as follows:
  2.  Any  sex offender, who is released on probation or discharged upon
payment of a fine,  conditional  discharge  or  unconditional  discharge

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04649-01-1
              

A. 3655                             2

shall,  prior  to  such  release or discharge, be informed of his or her
duty to register under this article by the court in which he or she  was
convicted.  At  the  time  sentence  is imposed, such sex offender shall
register with the division on a form prepared by the division. The court
shall  require  the  sex  offender  to  read  and  sign such form and to
complete the registration portion of such form. The court shall on  such
form  obtain  the  address where the sex offender expects to reside upon
his or her release, and the name and address of any institution of high-
er education he or she expects to be employed by, enrolled in, attending
or employed, whether for compensation or not,  and  whether  he  or  she
expects  to  reside  in a facility owned or operated by such an institu-
tion, and shall report such information to the division. The court shall
give one copy of the form to the sex offender and shall send two  copies
to  the division which shall forward the information to the law enforce-
ment agencies having jurisdiction.  The  court  shall  also  notify  the
district  attorney and the sex offender of the date of the determination
proceeding to be held pursuant to subdivision  three  of  this  section,
which shall be held at least forty-five days after such notice is given.
This  notice  shall  include  the following statement or a substantially
similar statement: "This proceeding is being held to  determine  whether
you  will be classified as a level 3 offender (risk of repeat offense is
high), a level 2 offender (risk of repeat offense  is  moderate),  or  a
level 1 offender (risk of repeat offense is low), or whether you will be
designated as a sexual predator, a sexually violent offender or a predi-
cate  sex offender, which will determine how long you must register as a
sex offender and how much information can  be  provided  to  the  public
concerning  your  registration.    IF YOU ARE CLASSIFIED AS A LEVEL 2 OR
LEVEL 3 OFFENDER FOR A FELONY SEX OFFENSE, THE COURT MAY ALSO  DETERMINE
WHETHER  YOU  WILL  BE  SUBJECT  TO  A  RESIDENCY  RESTRICTION WHICH MAY
RESTRICT WHERE YOU CAN ESTABLISH YOUR PERMANENT RESIDENCE. If  you  fail
to  appear  at  this  proceeding, without sufficient excuse, it shall be
held in your absence. Failure to appear may result in a longer period of
registration or a higher level of community notification because you are
not present to  offer  evidence  or  contest  evidence  offered  by  the
district  attorney."   The court shall also advise the sex offender that
he or she has a right to a hearing prior to the  court's  determination,
that he or she has the right to be represented by counsel at the hearing
and that counsel will be appointed if he or she is financially unable to
retain counsel. If the sex offender applies for assignment of counsel to
represent  him  or  her  at  the  hearing and counsel was not previously
assigned to represent  the  sex  offender  in  the  underlying  criminal
action,  the  court  shall determine whether the offender is financially
unable to retain counsel.  If such a finding is made,  the  court  shall
assign  counsel  to represent the sex offender pursuant to article eigh-
teen-B of the county law. Where the court orders a sex offender released
on probation, such order must include a provision requiring that  he  or
she  comply with the requirements of this article. Where such sex offen-
der violates such provision, probation may be immediately revoked in the
manner provided by article four hundred ten of  the  criminal  procedure
law.
  3.  For sex offenders released on probation or discharged upon payment
of a fine, conditional discharge or unconditional discharge, it shall be
the duty of the court applying the guidelines established in subdivision
five of section one hundred sixty-eight-l of this article  to  determine
the  level  of  notification  pursuant to subdivision six of section one
hundred sixty-eight-l of this article [and], whether such  sex  offender

A. 3655                             3

shall  be  designated  a  sexual predator, sexually violent offender, or
predicate sex offender as defined in subdivision seven  of  section  one
hundred sixty-eight-a of this article AND, WHEN DETERMINING THE LEVEL OF
NOTIFICATION  AND  APPLYING  THE  GUIDELINES  ESTABLISHED IN SUBDIVISION
FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE,  WHETHER  A
SEX  OFFENDER,  CLASSIFIED  AS  A LEVEL 2 OR LEVEL 3 OFFENDER WHO STANDS
CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT TO THIS ARTI-
CLE, WILL BE SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO SECTION  ONE
HUNDRED  SIXTY-EIGHT-W  OF THIS ARTICLE.  At least fifteen days prior to
the determination proceeding, the district attorney shall provide to the
court and the sex offender a written statement setting forth the  deter-
minations  sought by the district attorney together with the reasons for
seeking such determinations. The court shall allow the sex  offender  to
appear and be heard. The state shall appear by the district attorney, or
his  or  her  designee,  who  shall bear the burden of proving the facts
supporting the determinations sought by clear and  convincing  evidence.
Where  there  is  a  dispute between the parties concerning the determi-
nations, the court shall adjourn the hearing as necessary to permit  the
sex  offender  or  the district attorney to obtain materials relevant to
the determinations from any state or local facility, hospital,  institu-
tion,  office,  agency,  department  or  division. Such materials may be
obtained by subpoena if  not  voluntarily  provided  to  the  requesting
party. In making the determinations, the court shall review any victim's
statement  and  any relevant materials and evidence submitted by the sex
offender and the district attorney and the court may  consider  reliable
hearsay  evidence submitted by either party provided that it is relevant
to the determinations. Facts previously proven at trial or  elicited  at
the  time  of  entry  of a plea of guilty shall be deemed established by
clear and convincing evidence and shall not be  relitigated.  The  court
shall  render an order setting forth its determinations and the findings
of fact and conclusions of law on which the determinations are based.  A
copy  of the order shall be submitted by the court to the division. Upon
application of either party, the court shall seal  any  portion  of  the
court  file or record which contains material that is confidential under
any state or federal statute. Either party may appeal as of  right  from
the  order  pursuant to the provisions of articles fifty-five, fifty-six
and fifty-seven of the civil practice law and rules. Where  counsel  has
been assigned to represent the sex offender upon the ground that the sex
offender  is financially unable to retain counsel, that assignment shall
be continued throughout the pendency of the appeal, and the  person  may
appeal  as  a  poor  person pursuant to article eighteen-B of the county
law.
  S 4. Subdivision 2 of section 168-k of the correction law, as  amended
by chapter 684 of the laws of 2005, is amended to read as follows:
  2.  The  division  shall  advise  the  board that the sex offender has
established residence in this state. The board shall  determine  whether
the  sex  offender  is  required to register with the division. If it is
determined that the sex offender is required to register,  the  division
shall  notify the sex offender of his or her duty to register under this
article and shall require the sex offender to sign  a  form  as  may  be
required by the division acknowledging that the duty to register and the
procedure  for  registration has been explained to the sex offender. The
division shall obtain on such form the address where  the  sex  offender
expects to reside within the state and the sex offender shall retain one
copy of the form and send two copies to the division which shall provide
the  information to the law enforcement agency having jurisdiction where

A. 3655                             4

the sex offender expects to reside within  this  state.  No  later  than
thirty days prior to the board making a recommendation, the sex offender
shall  be  notified  that his or her case is under review and that he or
she  is permitted to submit to the board any information relevant to the
review. After reviewing  any  information  obtained,  and  applying  the
guidelines  established  in  subdivision  five  of  section  one hundred
sixty-eight-l of this article, the board  shall  within  sixty  calendar
days  make a recommendation regarding the level of notification pursuant
to subdivision six of section one hundred sixty-eight-l of this  article
[and],  whether such sex offender shall be designated a sexual predator,
sexually violent offender, or  predicate  sex  offender  as  defined  in
subdivision  seven  of section one hundred sixty-eight-a of this article
AND, WHEN DETERMINING THE LEVEL OF NOTIFICATION AND APPLYING THE  GUIDE-
LINES   ESTABLISHED   IN  SUBDIVISION  FIVE-A  OF  SECTION  ONE  HUNDRED
SIXTY-EIGHT-L OF THIS ARTICLE, WHETHER A SEX OFFENDER, CLASSIFIED  AS  A
LEVEL  2  OR  LEVEL  3  OFFENDER  WHO STANDS CONVICTED OF A FELONY WHICH
REQUIRES REGISTRATION PURSUANT TO THIS ARTICLE, WILL  BE  SUBJECT  TO  A
RESIDENCY  RESTRICTION  PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF
THIS ARTICLE.  This recommendation shall be confidential and  shall  not
be  available  for public inspection. It shall be submitted by the board
to the county court or supreme court and to the district attorney in the
county of residence of the sex offender and  to  the  sex  offender.  It
shall  be the duty of the county court or supreme court in the county of
residence of the sex offender, applying the  guidelines  established  in
subdivision  five  of section one hundred sixty-eight-l of this article,
to determine the level of notification pursuant to  subdivision  six  of
section  one  hundred  sixty-eight-l of this article [and], whether such
sex offender shall be designated a  sexual  predator,  sexually  violent
offender,  or  predicate sex offender as defined in subdivision seven of
section one hundred sixty-eight-a of this article AND, WHEN  DETERMINING
THE  LEVEL  OF  NOTIFICATION  AND APPLYING THE GUIDELINES ESTABLISHED IN
SUBDIVISION FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE,
WHETHER A SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER  WHO
STANDS  CONVICTED  OF  A  FELONY WHICH REQUIRES REGISTRATION PURSUANT TO
THIS ARTICLE, WILL BE SUBJECT TO A  RESIDENCY  RESTRICTION  PURSUANT  TO
SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE.  At least thirty days
prior  to  the  determination  proceeding,  such  court shall notify the
district attorney and the sex offender, in writing, of the date  of  the
determination  proceeding  and the court shall also provide the district
attorney and sex offender with a copy  of  the  recommendation  received
from  the  board and any statement of the reasons for the recommendation
received from the board. This notice shall include the following  state-
ment  or  a  substantially  similar statement: "This proceeding is being
held to determine whether you will be classified as a level  3  offender
(risk  of  repeat  offense  is high), a level 2 offender (risk of repeat
offense is moderate), or a level 1 offender (risk of repeat  offense  is
low), or whether you will be designated as a sexual predator, a sexually
violent  offender  or a predicate sex offender, which will determine how
long you must register as a sex offender and how much information can be
provided to the public concerning your registration. IF YOU ARE  CLASSI-
FIED  AS  A  LEVEL  2  OR LEVEL 3 OFFENDER FOR A FELONY SEX OFFENSE, THE
COURT MAY ALSO DETERMINE WHETHER YOU WILL  BE  SUBJECT  TO  A  RESIDENCY
RESTRICTION  WHICH  MAY  RESTRICT WHERE YOU CAN ESTABLISH YOUR PERMANENT
RESIDENCE. If you fail to appear at this proceeding, without  sufficient
excuse,  it  shall be held in your absence. Failure to appear may result
in a longer period of  registration  or  a  higher  level  of  community

A. 3655                             5

notification  because  you  are not present to offer evidence or contest
evidence offered by the district attorney."  The court shall also advise
the sex offender that he or she has a right to a hearing  prior  to  the
court's determination, that he or she has the right to be represented by
counsel  at  the hearing and that counsel will be appointed if he or she
is financially unable to retain counsel.  A  returnable  form  shall  be
enclosed  in  the  court's  notice  to the sex offender on which the sex
offender may apply for assignment of  counsel.    If  the  sex  offender
applies  for assignment of counsel and the court finds that the offender
is financially unable to retain counsel, the court shall assign  counsel
to  represent  the  sex  offender  pursuant to article eighteen-B of the
county law. If the district attorney seeks a determination that  differs
from  the recommendation submitted by the board, at least ten days prior
to the determination proceeding the district attorney shall  provide  to
the  court  and  the sex offender a statement setting forth the determi-
nations sought by the district attorney together with  the  reasons  for
seeking  such  determinations. The court shall allow the sex offender to
appear and be heard. The state shall appear by the district attorney, or
his or her designee, who shall bear the  burden  of  proving  the  facts
supporting  the  determinations sought by clear and convincing evidence.
It shall be the duty of the court applying the guidelines established in
subdivision five of section one hundred sixty-eight-l of this article to
determine the level of  notification  pursuant  to  subdivision  six  of
section  one  hundred  sixty-eight-l of this article [and], whether such
sex offender shall be designated a  sexual  predator,  sexually  violent
offender,  or  predicate sex offender as defined in subdivision seven of
section one hundred sixty-eight-a of this article AND, WHEN  DETERMINING
THE  LEVEL  OF  NOTIFICATION  AND APPLYING THE GUIDELINES ESTABLISHED BY
SUBDIVISION FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE,
WHETHER A SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER  WHO
STANDS  CONVICTED  OF  A  FELONY WHICH REQUIRES REGISTRATION PURSUANT TO
THIS ARTICLE, WILL BE SUBJECT TO A  RESIDENCY  RESTRICTION  PURSUANT  TO
SECTION  ONE  HUNDRED  SIXTY-EIGHT-W  OF  THIS ARTICLE. Where there is a
dispute between the parties concerning  the  determinations,  the  court
shall adjourn the hearing as necessary to permit the sex offender or the
district  attorney  to  obtain  materials relevant to the determinations
from the state board of examiners of sex offenders or any state or local
facility, hospital, institution, office, agency, department or division.
Such materials may be obtained by subpoena if not  voluntarily  provided
to  the  requesting  party. In making the determinations the court shall
review any victim's statement and any relevant  materials  and  evidence
submitted  by  the sex offender and the district attorney and the recom-
mendation and any material submitted by  the  board,  and  may  consider
reliable hearsay evidence submitted by either party, provided that it is
relevant  to  the determinations. If available, facts proven at trial or
elicited at the time of a plea of guilty shall be deemed established  by
clear  and  convincing  evidence and shall not be relitigated. The court
shall render an order setting forth its determinations and the  findings
of  fact and conclusions of law on which the determinations are based. A
copy of the order shall be submitted by the court to the division.  Upon
application  of  either  party,  the court shall seal any portion of the
court file or record which contains material that is confidential  under
any  state  or federal statute. Either party may appeal as of right from
the order pursuant to the provisions of articles  fifty-five,  fifty-six
and  fifty-seven  of the civil practice law and rules. Where counsel has
been assigned to represent the sex offender upon the ground that the sex

A. 3655                             6

offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  5.  Section  168-l of the correction law is amended by adding a new
subdivision 5-a to read as follows:
  5-A. THE BOARD SHALL  DEVELOP  GUIDELINES  AND  PROCEDURES  TO  ASSESS
WHETHER TO RECOMMEND THAT A SEX OFFENDER WHO STANDS CONVICTED OF A FELO-
NY  SHOULD BE SUBJECT TO A RESIDENCY RESTRICTION AS DESCRIBED IN SECTION
ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. SUCH GUIDELINES SHALL INCLUDE
THE FOLLOWING:
  (A)  WHETHER  A  RESIDENCY  RESTRICTION  WOULD  ADVERSELY  IMPACT  THE
OFFENDER'S SUCCESSFUL REENTRY AND REINTEGRATION INTO SOCIETY;
  (B)  WHETHER  A  RESIDENCY  RESTRICTION  IS  NECESSARY,  BASED  ON THE
OFFENDER'S CURRENT BEHAVIOR AND PRESENT AND PROSPECTIVE LIVING  ARRANGE-
MENTS TO PROTECT PUBLIC SAFETY;
  (C) THE ABILITY OF THE OFFENDER TO OBTAIN PERMANENT AND STABLE HOUSING
IN ORDER TO REDUCE THE LIKELIHOOD THAT THE OFFENDER WILL BE TRANSIENT;
  (D)  THE  ACCESSIBILITY  TO  SUPPORTIVE  SERVICES,  INCLUDING, BUT NOT
LIMITED TO, LOCALLY AVAILABLE SEX OFFENDER TREATMENT PROGRAMS THAT  HAVE
DEMONSTRATED  EFFECTIVENESS  IN  REDUCING  SEX  OFFENDER  RECIDIVISM AND
INCREASING PUBLIC SAFETY;
  (E) THE ABILITY OF THE OFFENDER TO FIND GAINFUL AND STABLE EMPLOYMENT;
AND
  (F) WHETHER THE OFFENSE THAT REQUIRES THE OFFENDER TO REGISTER  PURSU-
ANT TO THIS ARTICLE WAS COMMITTED AGAINST A MINOR CHILD.
  S  6.  The  opening paragraph of subdivision 6 of section 168-1 of the
correction law, as amended by chapter 11 of the laws of 2002, is amended
to read as follows:
  Applying [these] THE guidelines ESTABLISHED  IN  SUBDIVISION  FIVE  OF
THIS  SECTION,  the  board shall within sixty calendar days prior to the
discharge, parole, release to post-release supervision or release  of  a
sex offender make a recommendation which shall be confidential and shall
not  be  available  for public inspection, to the sentencing court as to
whether such sex offender warrants the designation of  sexual  predator,
sexually  violent  offender,  or  predicate  sex  offender as defined in
subdivision seven of section one hundred sixty-eight-a of this  article.
In  addition,  the  guidelines  ESTABLISHED  IN SUBDIVISION FIVE OF THIS
SECTION shall be applied by the board to make a  recommendation  to  the
sentencing  court which shall be confidential and shall not be available
for public inspection, providing for one of the [following] three levels
of notification DESCRIBED IN PARAGRAPHS (A), (B), AND (C) OF THIS SUBDI-
VISION depending upon the degree of the risk of re-offense  by  the  sex
offender. FURTHER, WHEN THE BOARD MAKES A RECOMMENDATION TO THE SENTENC-
ING  COURT  THAT  A  SEX  OFFENDER BE CLASSIFIED AS A LEVEL 2 OR LEVEL 3
OFFENDER AND SUCH OFFENDER STANDS CONVICTED OF A FELONY  WHICH  REQUIRES
REGISTRATION  PURSUANT  TO  THIS ARTICLE, THE BOARD SHALL ALSO APPLY THE
GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF  THIS  SECTION  AND  MAY
MAKE  A RECOMMENDATION REGARDING WHETHER SUCH OFFENDER SHOULD BE SUBJECT
TO  A  RESIDENCY  RESTRICTION  AS  DESCRIBED  IN  SECTION  ONE   HUNDRED
SIXTY-EIGHT-W OF THIS ARTICLE.
  S  7. Subdivision 7 of section 168-l of the correction law, as amended
by chapter 11 of the laws of 2002, is amended to read as follows:
  7. Upon request by the court, pursuant to section one  hundred  sixty-
eight-o  of  this  article,  the  board  shall provide an updated report
pertaining to the sex offender petitioning for relief  of  the  duty  to

A. 3655                             7

register [or], for a modification of his or her level of notification OR
FOR  MODIFICATION  OR  TERMINATION OF A RESIDENCY RESTRICTION IMPOSED BY
THE SENTENCING COURT.
  S  8.  Subdivisions  2  and  3 of section 168-n of the correction law,
subdivision 2 as amended by chapter 453 of the laws of 1999 and subdivi-
sion 3 as amended by chapter 684 of the laws of  2005,  are  amended  to
read as follows:
  2.  In  addition,  applying  the guidelines established in subdivision
five of section one hundred sixty-eight-l of this article, the  sentenc-
ing  court  shall also make a determination with respect to the level of
notification, after receiving a recommendation from the  board  pursuant
to  section  one hundred sixty-eight-l of this article.  [Both] FURTHER,
WHEN THE COURT CLASSIFIES A SEX OFFENDER AS A LEVEL 2 OR LEVEL 3  OFFEN-
DER AND SUCH OFFENDER STANDS CONVICTED OF A FELONY WHICH REQUIRES REGIS-
TRATION PURSUANT TO THIS ARTICLE AND THE BOARD HAS RECOMMENDED THAT SUCH
OFFENDER  BE  SUBJECT  TO A RESIDENCY RESTRICTION, THE COURT SHALL APPLY
THE GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF SECTION ONE  HUNDRED
SIXTY-EIGHT-L  OF  THIS ARTICLE AND MAKE A DETERMINATION WITH RESPECT TO
WHETHER SUCH OFFENDER SHALL BE SUBJECT TO  A  RESIDENCY  RESTRICTION  IN
ACCORDANCE  WITH  SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. ALL
determinations of the sentencing court PURSUANT TO THIS SECTION shall be
made thirty calendar days prior to discharge, parole or release.
  3. No later than thirty days prior to the board's recommendation,  the
sex  offender shall be notified that his or her case is under review and
that he or she is permitted to submit to the board any information rele-
vant to the review. Upon receipt  of  the  board's  recommendation,  the
sentencing court shall determine whether the sex offender was previously
found  to be eligible for assigned counsel in the underlying case. Where
such a finding was previously made, the court shall  assign  counsel  to
represent  the  offender,  pursuant  to article eighteen-B of the county
law. At least twenty days prior to  the  determination  proceeding,  the
sentencing  court  shall  notify the district attorney, the sex offender
and the sex offender's counsel, in writing, of the date of the  determi-
nation  proceeding and shall also provide the district attorney, the sex
offender and the sex offender's counsel with a copy of  the  recommenda-
tion  received  from  the board and any statement of the reasons for the
recommendation received from the board. This notice  shall  include  the
following  statement  or  a  substantially  similar  statement:    "This
proceeding is being held to determine whether you will be classified  as
a  level 3 offender (risk of repeat offense is high), a level 2 offender
(risk of repeat offense is moderate), or a level  1  offender  (risk  of
repeat  offense  is  low), or whether you will be designated as a sexual
predator, a sexually violent offender or a predicate sex offender, which
will determine how long you must register as a sex offender and how much
information can be provided to the public concerning your  registration.
IF  YOU ARE CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER FOR A FELONY SEX
OFFENSE, THE COURT MAY ALSO DETERMINE WHETHER YOU WILL BE SUBJECT  TO  A
RESIDENCY  RESTRICTION  WHICH  MAY RESTRICT WHERE YOU CAN ESTABLISH YOUR
PERMANENT RESIDENCE. If you fail to appear at this  proceeding,  without
sufficient  excuse,  it shall be held in your absence. Failure to appear
may result in a longer period of  registration  or  a  higher  level  of
community  notification because you are not present to offer evidence or
contest evidence offered by the district attorney." The  written  notice
to  the sex offender shall also advise the offender that he or she has a
right to a hearing prior to the court's determination, and  that  he  or
she  has the right to be represented by counsel at the hearing. If coun-

A. 3655                             8

sel has been assigned to represent the  offender  at  the  determination
proceeding,  the  notice  shall also provide the name, address and tele-
phone number of  the  assigned  counsel.  Where  counsel  has  not  been
assigned,  the notice shall advise the sex offender that counsel will be
appointed if he or she is financially unable to retain  counsel,  and  a
returnable  form  shall  be  enclosed  in  the court's notice to the sex
offender on which the sex offender may apply for assignment of  counsel.
If  the  sex  offender  applies  for assignment of counsel and the court
finds that the offender is financially unable  to  retain  counsel,  the
court  shall  assign  counsel  to represent the sex offender pursuant to
article eighteen-B of the county law. If the district attorney  seeks  a
determination  that  differs  from  the  recommendation submitted by the
board, at least ten days  prior  to  the  determination  proceeding  the
district  attorney  shall  provide  to  the court and the sex offender a
statement setting forth the determinations sought by the district attor-
ney together with the reasons for seeking such determinations. The court
shall allow the sex offender to appear and be  heard.  The  state  shall
appear  by the district attorney, or his or her designee, who shall bear
the burden of proving the facts supporting the determinations sought  by
clear  and  convincing  evidence.  Where  there is a dispute between the
parties concerning the determinations, the court shall adjourn the hear-
ing as necessary to permit the sex offender or the district attorney  to
obtain  materials relevant to the determinations from the state board of
examiners of sex offenders or any state  or  local  facility,  hospital,
institution, office, agency, department or division.  Such materials may
be  obtained  by  subpoena if not voluntarily provided to the requesting
party. In making the determinations the court shall review any  victim's
statement  and  any relevant materials and evidence submitted by the sex
offender and the district attorney and the recommendation and any  mate-
rials submitted by the board, and may consider reliable hearsay evidence
submitted  by either party, provided that it is relevant to the determi-
nations. Facts previously proven at trial or elicited  at  the  time  of
entry  of  a  plea  of  guilty  shall be deemed established by clear and
convincing evidence and shall not be relitigated. The court shall render
an order setting forth its determinations and the findings of  fact  and
conclusions  of law on which the determinations are based. A copy of the
order shall be submitted by the court to the division. Upon  application
of  either  party, the court shall seal any portion of the court file or
record which contains material that is confidential under any  state  or
federal  statute.  Either  party  may  appeal as of right from the order
pursuant to the provisions of articles fifty-five, fifty-six and  fifty-
seven  of  the  civil  practice  law  and  rules. Where counsel has been
assigned to represent the sex offender upon  the  ground  that  the  sex
offender  is financially unable to retain counsel, that assignment shall
be continued throughout the pendency of the appeal, and the  person  may
appeal  as  a  poor  person pursuant to article eighteen-B of the county
law.
  S 9. The section heading of section 168-o of the  correction  law,  as
amended  by chapter 453 of the laws of 1999, is amended and a new subdi-
vision 2-a is added to read as follows:
  Petition for relief or modification OF LEVEL  OF  NOTIFICATION  AND/OR
RESIDENCY RESTRICTION.
  2-A.  ANY  SEX OFFENDER SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO
THIS ARTICLE MAY PETITION THE COURT WHICH IMPOSED SUCH  RESTRICTION  FOR
AN  ORDER TERMINATING OR MODIFYING SUCH RESIDENCY RESTRICTION. THE PETI-
TION SHALL SET FORTH THE REASONS FOR SEEKING SUCH MODIFICATION OR TERMI-

A. 3655                             9

NATION.  THE SEX OFFENDER SHALL BEAR THE BURDEN  OF  PROVING  THE  FACTS
SUPPORTING  THE  REQUESTED  MODIFICATION  OR  TERMINATION  BY  CLEAR AND
CONVINCING EVIDENCE. SUCH A PETITION SHALL NOT BE CONSIDERED  MORE  THAN
ANNUALLY.  THE  DISTRICT  ATTORNEY AND THE SEX OFFENDER MAY APPEAL AS OF
RIGHT FROM AN ORDER  ISSUED  UNDER  THIS  SUBDIVISION  PURSUANT  TO  THE
PROVISIONS  OF  ARTICLES  FIFTY-FIVE,  FIFTY-SIX  AND FIFTY-SEVEN OF THE
CIVIL PRACTICE LAW AND RULES. WHERE COUNSEL HAS BEEN ASSIGNED TO  REPRE-
SENT  THE SEX   OFFENDER UPON THE GROUND THAT THE SEX OFFENDER IS FINAN-
CIALLY UNABLE TO RETAIN COUNSEL, THAT   ASSIGNMENT  SHALL  BE  CONTINUED
THROUGHOUT  THE  PENDENCY OF THE APPEAL, AND THE PERSON MAY APPEAL  AS A
POOR PERSON PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
  S 10. Section 168-o of the correction law is amended by adding  a  new
subdivision 3-a to read as follows:
  3-A. PRIOR TO THE EXPIRATION OF A RESIDENCY RESTRICTION ORDERED PURSU-
ANT  TO  SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE, THE DISTRICT
ATTORNEY MAY FILE A PETITION WITH THE SENTENCING COURT OR WITH THE COURT
WHICH ORDERED THE RESIDENCY RESTRICTION TO EXTEND THE DURATION  OF  SUCH
RESIDENCY RESTRICTION IN ACCORDANCE WITH SUBDIVISION FOUR OF SECTION ONE
HUNDRED  SIXTY-EIGHT-W OF THIS ARTICLE. THE PETITION SHALL SET FORTH THE
REASONS  FOR  SEEKING  TO  EXTEND  THE  DURATION   OF   SUCH   RESIDENCY
RESTRICTION.  THE DISTRICT ATTORNEY SHALL BEAR THE BURDEN OF PROVING NEW
FACTS  AND  CIRCUMSTANCES THAT WARRANT THE REQUESTED EXTENSION, BY CLEAR
AND CONVINCING EVIDENCE. IN THE EVENT THAT THE DISTRICT ATTORNEY'S PETI-
TION IS GRANTED, THE SEX OFFENDER MAY APPEAL AS OF RIGHT FROM THE ORDER,
PURSUANT TO THE PROVISIONS OF ARTICLES FIFTY-FIVE, FIFTY-SIX AND  FIFTY-
SEVEN  OF  THE  CIVIL  PRACTICE  LAW  AND  RULES. WHERE COUNSEL HAS BEEN
ASSIGNED TO REPRESENT THE OFFENDER UPON THE GROUND THAT  HE  OR  SHE  IS
FINANCIALLY UNABLE TO RETAIN COUNSEL, THAT ASSIGNMENT SHALL BE CONTINUED
THROUGHOUT  THE  PENDENCY OF THE APPEAL, AND THE PERSON MAY PROCEED AS A
POOR PERSON, PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
  S 11. Subdivision 4 of section 168-o of the correction law,  as  added
by chapter 453 of the laws of 1999, is amended to read as follows:
  4.  Upon  receipt of a petition submitted pursuant to subdivision one,
two [or], TWO-A, three, OR THREE-A of  this  section,  the  court  shall
forward  a  copy  of  the  petition  to the board and request an updated
recommendation pertaining to the sex offender and shall provide  a  copy
of the petition to the other party.  The court shall also advise the sex
offender  that  he  or she has the right to be represented by counsel at
the hearing and counsel will be appointed if he or  she  is  financially
unable  to  retain  counsel.  A returnable form shall be enclosed in the
court's notice to the sex offender on which the sex offender  may  apply
for  assignment  of counsel.  If the sex offender applies for assignment
of counsel and the court finds that the offender is  financially  unable
to  retain  counsel,  the  court  shall  assign counsel to represent the
offender, pursuant to article eighteen-B of the county  law.  Where  the
petition was filed by a district attorney, at least thirty days prior to
making an updated recommendation the board shall notify the sex offender
and  his  or her counsel that the offender's case is under review and he
or she is permitted to submit to the board any information  relevant  to
the  review.    The  board's  updated recommendation on the sex offender
shall be confidential and shall not be available for public  inspection.
After  receiving  an  updated recommendation from the board concerning a
sex offender, the court shall, at least thirty days prior to ruling upon
the petition, provide a copy of the updated recommendation  to  the  sex
offender, the sex offender's counsel and the district attorney and noti-
fy  them,  in writing, of the date set by the court for a hearing on the

A. 3655                            10

petition. After reviewing the recommendation received from the board and
any relevant materials and evidence submitted by the  sex  offender  and
the  district  attorney,  the  court may grant or deny the petition. The
court  may  also consult with the victim prior to making a determination
on the petition. The court shall  render  an  order  setting  forth  its
determination,  and the findings of fact and conclusions of law on which
the determination is based. If the petition is granted, it shall be  the
obligation  of  the court to submit a copy of its order to the division.
Upon application of either party, the court shall seal  any  portion  of
the  court  file  or record which contains material that is confidential
under any state or federal statute.
  S 12. Section 168-t of the correction law, as amended by  chapter  373
of the laws of 2007, is amended to read as follows:
  S  168-t.  Penalty. Any sex offender required to register or to verify
pursuant to the provisions of this article  who  fails  to  register  or
verify  in  the  manner and within the time periods provided for in this
article shall be guilty of a class E  felony  upon  conviction  for  the
first  offense,  and  upon conviction for a second or subsequent offense
shall be guilty of a class D felony. Any sex offender who  violates  the
provisions of section one hundred sixty-eight-v of this article OR KNOW-
INGLY  VIOLATES  A RESIDENCY RESTRICTION IMPOSED PURSUANT TO SECTION ONE
HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE shall  be  guilty  of  a  class  A
misdemeanor  upon  conviction for the first offense, and upon conviction
for a second or subsequent offense shall be guilty of a class D  felony.
Any such failure to register or verify may also be the basis for revoca-
tion of parole pursuant to section two hundred fifty-nine-i of the exec-
utive  law  or the basis for revocation of probation pursuant to article
four hundred ten of the criminal procedure law.
  S 13. Section 168-w of the correction law, as  relettered  by  chapter
604  of  the laws of 2005, is relettered section 168-x and a new section
168-w is added to read as follows:
  S 168-W. RESIDENCY RESTRICTION FOR CERTAIN SEX OFFENDERS. 1.  PURSUANT
TO SUBDIVISION THREE OF SECTION ONE HUNDRED  SIXTY-EIGHT-D,  SUBDIVISION
TWO  OF SECTION ONE HUNDRED SIXTY-EIGHT-K AND SUBDIVISION TWO OF SECTION
ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE, WHEN THE  COURT  WHICH  MAKES
THE  DETERMINATION REGARDING THE LEVEL OF NOTIFICATION OF A SEX OFFENDER
CLASSIFIES SUCH OFFENDER AS A LEVEL 2  OR  LEVEL  3  OFFENDER  AND  SUCH
OFFENDER  WAS CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT
TO THIS ARTICLE AND, WHERE APPLICABLE, THE BOARD  HAS  RECOMMENDED  THAT
SUCH OFFENDER BE SUBJECT TO A RESIDENCY RESTRICTION, THE COURT MAY ORDER
THAT SUCH OFFENDER COMPLY WITH A RESIDENCY RESTRICTION ACCORDING TO THIS
SECTION.  SUCH RESIDENCY RESTRICTION MAY BE IMPOSED ONLY AFTER THE COURT
HAS APPLIED THE GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF  SECTION
ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE.
  2. WHEN THE COURT DETERMINES THAT A RESIDENCY RESTRICTION IS NECESSARY
PURSUANT TO THE PROVISIONS OF THIS ARTICLE, THE COURT MAY ORDER THAT THE
SEX OFFENDER BE PROHIBITED FROM KNOWINGLY ESTABLISHING HIS OR HER PERMA-
NENT  RESIDENCE WITHIN UP TO ONE THOUSAND FEET OF ANY SCHOOL GROUNDS, AS
THE TERM IS DEFINED IN PARAGRAPH (A) OF SUBDIVISION FOURTEEN OF  SECTION
220.00  OF THE PENAL LAW. FOR THE PURPOSES OF THIS SUBDIVISION, THE TERM
PERMANENT RESIDENCE SHALL MEAN THE PLACE WHERE THE OFFENDER MAINTAINS  A
FIXED,  PERMANENT  AND  PRINCIPAL  HOME AND TO WHICH HE OR SHE, WHENEVER
TEMPORARILY AWAY, INTENDS  TO  RETURN.  PERMANENT  RESIDENCE  SHALL  NOT
INCLUDE TEMPORARY OR TRANSITIONAL HOUSING SUCH AS A SHELTER, RESIDENTIAL
TREATMENT PROGRAM, OR OTHER SIMILAR TEMPORARY OR TRANSIENT HOUSING.

A. 3655                            11

  3. THE COURT SHALL DETERMINE THE DURATION OF THE RESIDENCY RESTRICTION
IMPOSED   PURSUANT   TO   THIS  SECTION  PROVIDED,  HOWEVER,  THAT  SUCH
RESTRICTION SHALL NOT APPLY FOR MORE THAN TEN YEARS AFTER THE  LATER  OF
THE  OFFENDER'S  RELEASE  FROM  JAIL  OR PRISON OR THE PERIOD OR TERM OF
PROBATION,  PAROLE,  CONDITIONAL RELEASE OR POST-RELEASE SUPERVISION FOR
THE OFFENSE WHICH REQUIRES THE OFFENDER TO REGISTER AS  A  SEX  OFFENDER
PURSUANT  TO  THIS ARTICLE. IN CALCULATING THE DURATION OF THE RESIDENCY
RESTRICTION, ANY PERIOD OF TIME DURING WHICH THE OFFENDER IS INCARCERAT-
ED FOR ANY REASON AFTER SUCH RESIDENCY RESTRICTION IS ORDERED  SHALL  BE
EXCLUDED  AND  THE  DURATION  OF  THE RESTRICTION SHALL BE EXTENDED BY A
PERIOD OR PERIODS EQUAL TO THE TIME OF SUCH INCARCERATION.
  4. WHERE THE COURT HAS GRANTED A PETITION TO EXTEND THE DURATION OF  A
RESIDENCY  RESTRICTION  PURSUANT  TO  SUBDIVISIONS  THREE-A  AND FOUR OF
SECTION ONE HUNDRED SIXTY-EIGHT-O OF THIS ARTICLE, SUCH EXTENSION MAY BE
FOR A PERIOD OF UP TO FIVE YEARS.
  S 14. Paragraph (a) of subdivision 4-a of section 65.10 of  the  penal
law, as amended by chapter 67 of the laws of 2008, is amended to read as
follows:
  (a)  When  imposing  a  sentence of probation or conditional discharge
upon a person convicted of an offense defined  in  article  one  hundred
thirty, two hundred thirty-five or two hundred sixty-three of this chap-
ter, or section 255.25, 255.26 or 255.27 of this chapter, and the victim
of  such  offense  was  under  the  age  of eighteen at the time of such
offense or such person has been designated a level  three  sex  offender
pursuant to subdivision six of section [168-l] ONE HUNDRED SIXTY-EIGHT-L
of the correction law, the court shall require, as a mandatory condition
of  such sentence, that such sentenced offender shall refrain from know-
ingly entering into or upon any school grounds, as that term is  defined
in PARAGRAPH (A) OF subdivision fourteen of section 220.00 of this chap-
ter, or any other facility or institution primarily used for the care or
treatment of persons under the age of eighteen while one or more of such
persons  under  the  age of eighteen are present, provided however, that
when such sentenced offender is a registered student or  participant  or
an employee of such facility or institution or entity contracting there-
with  or  has  a family member enrolled in such facility or institution,
such sentenced offender may, with the written authorization  of  his  or
her  probation  officer  or  the  court  and the superintendent or chief
administrator of such  facility,  institution  or  grounds,  enter  such
facility,  institution  or  upon  such  grounds for the limited purposes
authorized by the probation officer or the court and  superintendent  or
chief  officer.  Nothing  in  this  subdivision  shall  be  construed as
restricting any lawful condition of supervision that may be  imposed  on
such sentenced offender.
  S 15. Subdivision 14 of section 259-c of the executive law, as amended
by chapter 320 of the laws of 2006, is amended to read as follows:
  14.  notwithstanding any other provision of law to the contrary, where
a person serving a sentence  for  an  offense  defined  in  article  one
hundred  thirty,  one  hundred thirty-five or two hundred sixty-three of
the penal law or section 255.25, 255.26 or 255.27 of the penal  law  and
the  victim of such offense was under the age of eighteen at the time of
such offense or such person has been designated a level three sex offen-
der pursuant to subdivision six of section one hundred sixty-eight-l  of
the  correction  law,  is  released  on parole or conditionally released
pursuant to subdivision one or two of  this  section,  the  board  shall
require,  as  a mandatory condition of such release, that such sentenced
offender shall refrain from knowingly entering into or upon  any  school

A. 3655                            12

grounds,  as  that term is defined in PARAGRAPH (A) OF subdivision four-
teen of section 220.00 of the penal law, or any other facility or insti-
tution primarily used for the care or treatment of persons under the age
of  eighteen while one or more of such persons under the age of eighteen
are present, provided however, that when such sentenced  offender  is  a
registered  student  or  participant  or an employee of such facility or
institution or entity contracting  therewith  or  has  a  family  member
enrolled  in  such facility or institution, such sentenced offender may,
with the written authorization of his or  her  parole  officer  and  the
superintendent  or  chief administrator of such facility, institution or
grounds, enter such facility, institution or upon such grounds  for  the
limited  purposes authorized by the parole officer and superintendent or
chief officer.   Nothing in  this  subdivision  shall  be  construed  as
restricting  any  lawful condition of supervision that may be imposed on
such sentenced offender.
  S 16. The opening paragraph of subdivision 4 of section 530.13 of  the
criminal  procedure  law, as amended by chapter 476 of the laws of 2009,
is amended to read as follows:
  Upon conviction of any offense, where the  court  has  not  issued  an
order  of  protection  pursuant  to  section 530.12 of this article, the
court may, in addition to any other disposition, including a conditional
discharge  or  youthful  offender  adjudication,  enter  an   order   of
protection.  Where a temporary order of protection was issued, the court
shall state on the record the reasons for  issuing  or  not  issuing  an
order of protection. The duration of such an order shall be fixed by the
court  and; (A) in the case of a felony conviction, shall not exceed the
greater of: (i) eight years from the date of such  conviction,  or  (ii)
eight  years  from  the date of the expiration of the maximum term of an
indeterminate or the term of  a  determinate  sentence  of  imprisonment
actually  imposed;  or  (B)  in  the  case of a conviction for a class A
misdemeanor, shall not exceed the greater of: (i) five  years  from  the
date of such conviction, or (ii) five years from the date of the expira-
tion  of  the  maximum  term of a definite or intermittent term actually
imposed; or (C) in the case of a conviction for any other offense, shall
not exceed the greater of: (i) two years from the date of conviction, or
(ii) two years from the date of the expiration of the maximum term of  a
definite  or intermittent term actually imposed, PROVIDED, HOWEVER, THAT
IN THE CASE OF A CONVICTION FOR AN OFFENSE FOR WHICH REGISTRATION  AS  A
SEX OFFENDER IS REQUIRED PURSUANT TO SUBDIVISION TWO OR THREE OF SECTION
ONE  HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW, AND THE VICTIM OF SUCH
OFFENSE WAS UNDER THE AGE OF EIGHTEEN AT THE TIME OF SUCH  OFFENSE,  THE
DURATION  OF  AN ORDER OF PROTECTION ISSUED PURSUANT TO THIS SUBDIVISION
MAY BE, BUT SHALL NOT EXCEED, THE GREATER  OF  THE  APPLICABLE  DURATION
PROVIDED  FOR  IN  THE FOREGOING PROVISIONS OF THIS SUBDIVISION OR UNTIL
THE VICTIM OF SUCH OFFENSE ATTAINS THE AGE OF EIGHTEEN.  For purposes of
determining the duration of an order of protection entered  pursuant  to
this  subdivision,  a conviction shall be deemed to include a conviction
that has been replaced by a youthful offender adjudication.  In addition
to any other conditions such an order may require that the defendant:
  S 17. The opening paragraph of subdivision 4 of section 530.13 of  the
criminal  procedure  law, as amended by chapter 384 of the laws of 2001,
is amended to read as follows:
  Upon conviction of any offense, where the  court  has  not  issued  an
order  of  protection  pursuant  to  section 530.12 of this article, the
court may, in addition to any other disposition, including a conditional
discharge  or  youthful  offender  adjudication,  enter  an   order   of

A. 3655                            13

protection.  Where a temporary order of protection was issued, the court
shall state on the record the reasons for  issuing  or  not  issuing  an
order of protection. The duration of such an order shall be fixed by the
court  and,  in  the  case  of a felony conviction, shall not exceed the
greater of: (i) five years from the date of  such  conviction,  or  (ii)
three  years  from  the date of the expiration of the maximum term of an
indeterminate sentence of imprisonment actually imposed; or in the  case
of  a conviction for a class A misdemeanor, shall not exceed three years
from the date of such conviction; or in the case of a conviction for any
other offense, shall not exceed one year from the  date  of  conviction,
PROVIDED,  HOWEVER,  THAT IN THE CASE OF A CONVICTION FOR AN OFFENSE FOR
WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED PURSUANT TO SUBDIVISION
TWO OR THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW,
AND THE VICTIM OF SUCH OFFENSE WAS UNDER THE AGE OF EIGHTEEN AT THE TIME
OF SUCH OFFENSE, THE DURATION OF AN ORDER OF PROTECTION ISSUED  PURSUANT
TO  THIS  SUBDIVISION  MAY  BE, BUT SHALL NOT EXCEED, THE GREATER OF THE
APPLICABLE DURATION PROVIDED FOR IN THE  FOREGOING  PROVISIONS  OF  THIS
SUBDIVISION OR UNTIL THE VICTIM OF SUCH OFFENSE ATTAINS THE AGE OF EIGH-
TEEN.    For  purposes  of  determining  the  duration  of  an  order of
protection entered pursuant to this subdivision, a conviction  shall  be
deemed  to  include  a  conviction  that has been replaced by a youthful
offender adjudication. In addition to any other conditions such an order
may require that the defendant:
  S 18. No municipal corporation, as defined in section 2 of the general
municipal law, shall, on or after the effective date of the  chapter  of
the  laws  of 2011 that created this section, enact any local law, ordi-
nance, code, rule or regulation requiring a sex offender, as  such  term
is  defined  by  section  168-a  of the correction law, to comply with a
residency restriction. The provisions of this act shall  invalidate  and
preempt  any such local law, ordinance, code, rule or regulation enacted
after the effective date of the chapter of the laws of 2011  that  added
this section.
  S  19.  The  provisions  of  this act shall preempt and invalidate any
local law, ordinance, code, rule or regulation enacted before the effec-
tive date of the chapter of the laws of 2011  that  added  this  section
requiring  a  sex  offender, as such term is defined by section 168-a of
the correction law, to comply with a residency restriction, except  that
nothing  in  this act shall preclude any local probation department from
enforcing any lawful condition of probation that may  be  imposed  on  a
sentenced offender.
  S 20. The district attorney may file a petition to seek the imposition
of a residency restriction for: (i) a sex offender classified as a level
2  or  3 offender who stands convicted of a felony which requires regis-
tration pursuant to article 6-C of the correction  law  and  who  is  at
liberty  on  the effective date of this act; and (ii) a sex offender who
was convicted of a felony which requires registration pursuant to  arti-
cle  6-C  of  the correction law prior to the effective date of this act
and is incarcerated in a state or local  correctional  facility  on  the
effective date of this act and is classified as a level 2 or 3 offender.
A  petition  filed  pursuant  to  paragraph (i) of this section shall be
filed with the sentencing court or the court  which  made  the  determi-
nation  regarding  the level of notification of such offender within one
year of the effective date of this act. A  petition  filed  pursuant  to
paragraph  (ii) of this section shall be filed with the sentencing court
or the court which made the determination regarding the level of notifi-
cation of such offender within one year of the release of such  offender

A. 3655                            14

from incarceration. The petition shall set forth the reasons for seeking
the  residency  restriction  and  the  district  attorney shall bear the
burden, by clear and convincing evidence, of proving the facts  support-
ing  the  imposition of a residency restriction. Upon receipt of a peti-
tion submitted pursuant to this section, the court shall  proceed  in  a
manner  consistent with subdivision 4 of section 168-o of the correction
law. Applying the guidelines established in subdivision 5-a  of  section
168-1 of the correction law, the court shall determine whether to impose
a  residency  restriction on the offender named in the petition pursuant
to section 168-w of the correction law. In the event that  the  district
attorney's  petition is granted, the sex offender may appeal as of right
from the order, pursuant to the provisions of articles 55, 56 and 57  of
the  civil  practice  law  and rules. Where counsel has been assigned to
represent the offender upon the ground that he  or  she  is  financially
unable  to retain counsel, that assignment shall be continued throughout
the pendency of the appeal, and the person may proceed as a poor person,
pursuant to article eighteen-B of the county law.
  S 21. This act shall take effect immediately, provided that the amend-
ments to the opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law made by section sixteen  of  this  act  shall  be
subject  to  the  expiration and reversion of such paragraph pursuant to
section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
date the provisions of section seventeen of this act shall take effect.